Posts tagged university of calgary

The recent decision of the Ontario Superior Court of Justice in AlGhaithy v. University of Ottawa (CanLII) is an important one for universities to consider when setting up internal rules and procedures and addressing concerning behavior of students.

Accordingly to the decision, Dr. AlGhaithy practiced in Saudi Arabia for several years before beginning a neurosurgery residency with the University of Ottawa. As the years of his residency went by, others in the program expressed concern about his conduct. The particulars are described in the decision, and Dr. AlGhaithy was eventually dismissed from the program. He appealed the decision internally, and when that failed he looked for judicial review (i.e. for the internal decision to be undone) from the courts.

His claim led the court to emphasize several points relevant to all universities:

1. Courts are reluctant to interfere with the academic decisions of universities unless there has been “manifest unfairness” in the procedure adopted or the decision is unreasonable.

This basic principle is relied on regularly by universities and is the single largest hurdle for student litigants to overcome. If an internal decision connected to an academic issue is “reasonable”, then the courts will not fiddle with an internal university decision. Here is how the task of the court in those circumstances is described:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

In this case, even though the initial decision was made with a questionable procedure, the appeals process made up for it in terms of fairness, and the outcome was deemed to be reasonable.

2. The Charter of Rights and Freedoms does not generally apply to universities.

Even since the Pridgen decision involving the University of Calgary (see here for more discussion on that), student litigants have routinely claimed that their university has infringed on the student’s rights under the Charter. The idea is that even though the university is not, strictly speaking, part of the government, it should be considered to be implementing a government program, and thus while so doing it must respect the Charter rights of students.

Many students, particularly political activists, were hoping that Pridgen meant a whole new world of possible claims against universities, but the courts seem to have played down the significance of the decision by limiting it to the unique legislation applicable to the Alberta universities.

In this case, here is how the court treats that argument:

The applicant relies on a decision of the Court of Queen’s Bench of Alberta, Pridgen v. University of Calgary, [2010] ABQB 644, which held that a decision of the University of Calgary to discipline students was subject to Charter scrutiny. An appeal of that decision is under reserve at the Alberta Court of Appeal at this time. In any event, the case is distinguishable, given that Alberta legislation requires universities to carry out a specific government objective of facilitating access to post-secondary education. There is no equivalent legislation in Ontario.

The University was not implementing a government program or policy nor exercising a power delegated by the Royal College of Physicians and Surgeons of Canada or the College of Physicians and Surgeons of Ontario when it disciplined the applicant. Instead, the Appeals Committee was making a decision about an internal matter, the dismissal of a student for a violation of standards of academic conduct. Therefore, the Charter of Rights does not apply in the circumstances, and I need not consider the argument that s. 2(b) of the Charterwas infringed.

The Plaintiffs’ reference to the outcome in Pridgen v. University of Calgary, 2010 ABQB 644 (CanLII), 2010 ABQB 644, 497 A.R. 219, under appeal, fails to recognize that the Court made specific reference to the governing structure of the university in that case which involved significant government involvement. On this basis, the Court found the university was delivering a specific government program in partnership with the government. By contrast, the Carleton University Act, 1952 created an autonomous entity whose structure and governance is in no way prescribed by the government. Subsequent enactment of the Post‑secondary Education Choice and Excellence Act in no way derogates from that autonomy.

Dr. AlGhaithy is also among the students who are suing (Calgary Herald) the University of Ottawa for over $150 million for various issues, including an allegation of discrimination. Here is a link to their Statement of Claim. Apparently, the group had filed a human rights complaint against the university roughly a year ago, but there is no information readily available with any indication of how that is progressing.

The latest facebook-got-your-tongue litigation making national headlines (Vancouver Sun) popped up this week from the University of Calgary, where twins – both students – were placed on probation two years ago for stinging comments they made in November 2007 about a professor on a facebook page entitled “I no longer fear Hell, I took a course with [the Professor's name]“. The comments on the site include suggestions that the professor “got lazy and gave everybody a 65″.

The professor complained to the interim dean that this was an assault on the professor’s reputation, and the interim dean determined that the twins had used facebook to commit non-academic misconduct and handed down a penalty accordingly. The Board of Governors declined to hear an appeal of the decision and grant them a formal hearing. The twins are now seeking judicial review before the Court of Queen’s Bench in Alberta. Arguments before the court began this past Friday and were adjourned to another date.

The university maintains that the twins made unsubstantiated allegations that violated the school’s student code of conduct. No formal hearing was required given the nature of the penalty handed down. In contrast, the twins claim they wrote nothing wrong and the university’s actions smack of procedural unfairness. The university is trying to place a muzzle on legitimate criticism of professors.

This is a sad picture for a number of reasons:

The university appears to have done a miserable job of explaining its position in the court of public opinion. While the demands of journalists to write short, punchy news pieces on a tight deadline means that much of the essential facts may get chewed up in the process, there does not seem to be any clear response by the university to several basic questions. By what authority did the school punish the twins for comments they made online in a non-academic forum? How broad is this power and how else has it been used? Does the university consider the comments to be defamation or a milder form of wrongdoing that nonetheless violated the student code? What sort of online criticism of professors is permitted under the code? You cannot control how much of your side of the story the media decides to tell, but you better use any resources you have to stream it into the marketplace. The U of C website showed no recent press release asserting its view of the matter.

The twins are in the uneasy position of having to justify publicly why they made seemingly juvenile comments that have likely impacted the professor’s livelihood in a meaningful way. Many students use facebook the way baby boomers, in their student days, used – well – talking. Students have traditionally made fun of unpopular professors and criticized them unfairly, but usually only in a somewhat private setting – students nowadays would never dream of splashing those comments across the national media, which is exactly what has happened in this case. As much as the university has to justify its response to the comments, the twins have to defend the comments as legitimate.

The best advice I have ever heard about making online commentary is never post anything that you would not want to see appear after your name on the front page of a major newspaper. Facebook has entered the courtroom in many ways, particularly to the detriment of student users. For example, in MacIntyre v. Pitt Meadows Secondary School (CanLII), a recent decision of the Supreme Court of British Columbia involving a student’s claim for compensation for an injury suffered in shop class, the court relied heavily on photos posted on facebook as evidence showing the student shortly after the accident being physically and socially active.

Students have the freedom to criticize their professors in public, but it has never been easier for those comments to cross the line into something more troublesome and they must be aware not only of the rules surrounding a tort like defamation but also the rules of the school they attend that form part of their educational contract. School administrators must establish policies governing this new venue for commentary. Although it is difficult to glean from the media reports enough information to draw concrete conclusions in this case, universities – in Alberta, British Columbia and the rest of Canada – are looking to a court decision arising from the University of Calgary’s travails that will provide further guidance in setting the appropriate course.